Chapter 8.75

TOBACCO RETAILERS LICENSING ORDINANCE

Sections:

8.75.010 Definitions.

8.75.020 Tobacco retailer’s license required.

8.75.030 Unlawful business operation.

8.75.040 Display of license.

8.75.050 Positive identification required.

8.75.060 Minimum age for persons selling tobacco.

8.75.070 Self-service displays prohibited.

8.75.080 False and misleading advertising prohibited.

8.75.090 Packaging and labeling.

8.75.100 Display of price.

8.75.110 Minimum prices and pack sizes for cigars and cigarettes.

8.75.120 Flavored tobacco products prohibited.

8.75.130 License application.

8.75.140 Issuance of license.

8.75.150 License renewal and expiration.

8.75.160 License nontransferable.

8.75.170 License conveys a limited, conditional privilege.

8.75.180 Fee for license.

8.75.190 Compliance monitoring.

8.75.200 Tobacco retailing without a valid license.

8.75.210 Violations, suspension and or revocations.

8.75.220 Seizure of illegal products.

8.75.230 Revocation of license wrongly issued.

8.75.240 Notice and Administrative appeals.

8.75.250 Enforcement.

8.75.260 Penalties.

8.75.270 Outreach and education.

8.75.280 Adoption of regulations.

8.75.290 Effect.

ARTICLE I. General Provisions and Definitions.

SECTION 1. LEGISLATIVE FINDINGS

The City Council finds and determines the foregoing recitals to be true and correct and hereby adopts and incorporates them into this ordinance.

SECTION 2. LEGISLATIVE PURPOSE AND INTENT

This ordinance is intended to promote public health and to protect young people from harmful tobacco products. It establishes a licensing program that encourages responsible tobacco retailing and holds violators accountable for selling and distributing harmful and addictive tobacco and nicotine products to underage individuals. The ordinance is intended to supplement relevant provisions of federal and state law; it is not intended nor should it be interpreted to conflict, expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein.

SECTION 3. FMC CHAPTER 8.75 ADDED

Chapter 8.75, Tobacco Retailers License, is added to Fremont Municipal Code as follows:

Sec. 8.75.010. Definitions.

Notwithstanding any other provision of this Code, the following words and phrases, whenever used in this chapter, shall have the meanings defined in this section unless the context clearly requires otherwise:

1. (a) “Arm’s length transaction” means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of this chapter is not an arm’s length transaction.
2. (b) “Characterizing flavor” means a taste or aroma, other than the taste or aroma of tobacco, imparted either prior to or during consumption of a tobacco product or any byproduct produced by the tobacco product, including, but not limited to, tastes or aromas relating to menthol, mint, wintergreen, fruit, chocolate, vanilla, honey, candy, cocoa, dessert, alcoholic beverage, herb, or spice; provided, however, that a tobacco product shall not be determined to have a characterizing flavor solely because of the use of additives or flavorings or the provision of ingredient information.
3. (c) “Cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and includes products known as or labeled little cigars, small cigars or cigarillos.
4. (d) “Cigarette” means: (1) any roll of tobacco wrapped in paper or in any substance not containing tobacco; and (2) any roll of tobacco wrapped in any substance containing tobacco which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described herein.
5. (e) “Consumer” means a person who purchases a tobacco product for consumption and not for Sale to another.
6. (f) “Department” means the department, staff or person designated by the City Manager to enforce or administer the provisions of this chapter.
7. (g) “Flavored tobacco product” means any tobacco product that that imparts a characterizing flavor, including menthol cigarettes and flavored non-cigarette tobacco products such as little cigars, smokeless tobacco, and flavored components of e-cigarettes and vaping devices.
8. (h) “Labeling” means written, printed, or graphic matter upon any tobacco product or any of its packaging, or accompanying such tobacco product.
9. (i) “Little cigar” means any roll of tobacco other than a cigarette wrapped entirely or in part in tobacco or any substance containing tobacco and weighing no more than three pounds per thousand. “Little cigar” includes, but is not limited to, any tobacco product known or labeled as “small cigar” or “little cigar.”
10. (j) “Manufacturer” means any person, including any repacker or relabeler, who manufactures, fabricates, assembles, processes, or labels a tobacco product; or imports a finished tobacco product for sale or distribution into the United States.
11. (k) “Package” or “Packaging” means a pack, box, carton, or container of any kind or, if no other container, any wrapping (including cellophane) in which a tobacco product is sold or offered for sale to a consumer.
12. (l) “Person” means any natural person, partnership, cooperative association, corporation, personal representative, receiver, trustee, assignee, or any other legal entity.
13. (m) “Proprietor” means a person with an ownership or managerial interest in a business. An ownership interest shall be deemed to exist when a person has a ten percent (10%) or greater interest in the stock, assets, or income of a business other than the sole interest of security for debt. A managerial interest shall be deemed to exist when a Person can or does have or share ultimate control over the day-to-day operations of a business.
14. (n) “Sale” or “Sell” means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever.
15. (o) “Self-service display” means the open display or storage of tobacco products or tobacco paraphernalia in a manner that is physically accessible in any way to the general public without the assistance of the retailer or employee of the retailer and a direct person-to-person transfer between the purchaser and the retailer or employee of the retailer. A vending machine is a form of self-service display.
16. (p) “Tobacco paraphernalia” means any item designed or marketed for the consumption, use, or preparation of tobacco products.
17. (q) “Tobacco product” means:
    • (1) any product containing, made, or derived from tobacco or nicotine that is intended for human consumption, whether smoked, heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed, or ingested by any other means, including, but not limited to cigarettes, cigars, little cigars, chewing tobacco, pipe tobacco, snuff; and
    • (2) any electronic device that delivers nicotine or other substances to the person inhaling from the device, including, but not limited to an electronic cigarette, a vaping device, electronic cigar, electronic pipe, or electronic hookah.
    • (3) Notwithstanding any provision of subsections (1) and (2) to the contrary, “tobacco product” includes any component, part, or accessory of a tobacco product, whether or not sold separately. “Tobacco product” does not include any product that has been approved by the United States Food and Drug Administration for sale as a tobacco cessation product or for other therapeutic purposes where such product is marketed and sold solely for such an approved purpose.
18. (r) “Tobacco retailer” means any person, and a person’s agents, employees, or representatives, who sells, offers for sale, or does or offers to exchange for any form of consideration, tobacco, tobacco products or tobacco paraphernalia. “Tobacco retailing” shall mean the doing of any of these things. This definition is without regard to the quantity of tobacco products or tobacco paraphernalia sold, offered for sale, exchanged, or offered for exchange.

ARTICLE II. Requirements and Prohibitions.

Sec. 8.75.020 Tobacco retailer’s license required.

It is unlawful for any person to act as a tobacco retailer in the city without first obtaining and maintaining a valid city-issued tobacco retailer’s license pursuant to this chapter for each tobacco retailing location. No license may issue to authorize tobacco retailing at other than a fixed location. Tobacco retailing by persons on foot or from vehicles is prohibited. Tobacco retailing without a valid tobacco retailer’s license is illegal and a nuisance as a matter of law. Sec. 8.75.030 Unlawful business operation.
In the course of tobacco retailing or in the operation of the business or maintenance of the location for which a license issued, it is a violation of this chapter for a licensee, or any of the licensee’s agents or employees, to violate any local, state, or federal law applicable to tobacco products, tobacco paraphernalia, or tobacco retailing. Tobacco retailers shall also comply with the following requirements.

Sec. 8.75.040 Display of license.

Each tobacco retailer license shall be prominently displayed in a publicly visible location at the licensed location.

Sec. 8.75.050 Positive identification required.

No person engaged in tobacco retailing shall sell or transfer tobacco products or tobacco paraphernalia to another person who appears to be under the age of twenty-seven (27) years without first examining the identification to confirm the recipient is at least the minimum age allowed under state law to purchase and possess the tobacco product or tobacco paraphernalia. Sec. 8.75.060 Minimum age for persons selling tobacco. No person who is younger than the minimum age established by state law for the purchase or possession of tobacco products shall engage in tobacco retailing. Sec.8.75.070 Self-service displays prohibited. Tobacco retailing by means of a self-service display is prohibited. Sec. 8.75.080 False and misleading advertising prohibited. Tobacco retailers and proprietors without a valid tobacco retailer license, including those whose license has been suspended or revoked shall not: (a) keep any tobacco products and tobacco paraphernalia in public view. The public display of tobacco products or tobacco paraphernalia in violation of this provision constitutes tobacco retailing without a license; and (b) display any advertisement relating to tobacco products or tobacco paraphernalia that promote the sale or distribution of such products from the retailer’s location or that could lead a reasonable consumer to believe such products can be obtained at that location. Sec. 8.75.090 Packaging and labeling. No tobacco retailer shall sell any tobacco product to any consumer unless such product: (1) is sold in the original manufacturer’s packaging intended for sale to consumers; and (2) conforms to all applicable federal labeling requirements. Sec. 8.75.100 Display of price. The price of each tobacco product offered for sale shall be clearly and conspicuously displayed to clearly indicate the price of the product. Sec. 8.75.110 Minimum price and pack sizes for cigars and cigarettes. A tobacco retailer shall not sell or offer to sell to a consumer: (a) Cigars (1) Any single cigar, whether or not packaged for individual sale; (2) A pack of cigars unless it contains at least five cigars and is sold for a minimum price of $8.00 per pack, including taxes and fees. (3) This section does not apply to the sale of a single cigar for which the minimum retail price is $5.00, including taxes and fees. (b) Cigarettes (1) Any single cigarette, whether or not packaged for individual sale; (2) Any number of cigarettes fewer than the twenty cigarettes contained in the manufacturer’s original consumer packaging for sale to consumers; (3) Any pack of cigarettes unless it contains at least twenty cigarettes and is sold for a minimum price of $8.00 per pack, including taxes and fees. Sec. 8.75.120 Flavored tobacco products prohibited. (a) No tobacco retailer, nor any of the retailer’s agents or employees, shall sell or offer for sale, or possess with intent to sell or offer for sale, any flavored tobacco product. (b) A tobacco retailer’s possession of four or more flavored tobacco products, or any combination thereof, creates a rebuttable presumption the retailer possesses such flavored tobacco products with intent to sell or offer for sale. (c) The following actions of a tobacco retailer, manufacturer or any employee or agent of a tobacco retailer or manufacturer create a rebuttable presumption that a tobacco product is a flavored tobacco product: (1) public statements or claims that the tobacco product imparts a characterizing flavor; (2) text and/or images on the tobacco product’s labeling or packaging to explicitly or implicitly indicate the tobacco product imparts a characterizing flavor; or (3) other actions directed to consumers that would reasonably cause consumers to believe the tobacco product imparts a characterizing flavor. Article III. License application procedures and requirements. Sec. 8.75.130 License application. Application for a tobacco retailer’s license shall be submitted in the name of each proprietor proposing to conduct retail tobacco sales and shall be signed by each proprietor or their authorized agent. (a) Proprietors must be informed of all applicable tobacco retailing laws and the city’s licensing requirements. No proprietor may rely on an issued license as determined by the city that the proprietor has complied with applicable tobacco retailing laws. Nothing in this chapter shall be construed to vest in any person who obtains a tobacco retailer’s license any status or right to act as a tobacco retailer in contravention of any law. (b) All applications shall be submitted on a form provided by the department and shall contain the following information and documents: (1) The name, address, e-mail and telephone number of each proprietor of the business seeking a license. (2) The business name, address, e-mail and telephone number of the single fixed location for which a license is sought. (3) A single name and mailing address authorized by each proprietor to receive all communications and notices (the “authorized address”) required by, authorized by, or convenient to the enforcement of this chapter. If an authorized address is not supplied, each proprietor shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) above. (4) A copy of a valid state license issued by the California Board of Equalization for the location for which a tobacco retailer’s license is sought. (5) Whether or not any proprietor or any agent of the proprietor has admitted violating, or has been found to have violated, this chapter and, if so, the dates and locations of all such violations within the previous five years. (6) Such other information as the department deems necessary for the administration or enforcement of this chapter. (c) Licensed tobacco retailers shall inform the department in writing of any change in the information submitted on an application for a tobacco retailer’s license within ten business days of a change. (d) The information and documents submitted to the city under this section is subject to disclosure under the California Public Records Act (California Government Code Section 6250 et seq.) or any other applicable law, subject to legal exemptions. (e) A license issued by mistake or contrary to this chapter, or any other law, or on the basis of false or misleading information is invalid. Sec. 8.75.140 Issuance of license. Upon receipt of a complete application required by this chapter, the department will issue a license unless substantial evidence demonstrates that one or more of the following bases for denial exists: (a) The information presented in the application is inaccurate or false. Intentionally supplying inaccurate or false information constitutes a violation of this chapter. (b) The application seeks authorization for tobacco retailing at a location for which this chapter or other city laws prohibit issuance of a tobacco retailer license. (c) The application seeks authorization for tobacco retailing for a proprietor to whom this chapter prohibits a license to be issued. (d) The application seeks authorization for tobacco retailing that is prohibited pursuant to this chapter (e.g., mobile vending), or is unlawful under the Fremont Municipal Code (e.g., the zoning code, building code, fire code, or the business license tax ordinance), or that is unlawful pursuant to any other law. (e) The location for which a license is sought lacks a valid state tobacco retailer’s license issued by the California Board of Equalization. Sec. 8.75.150 License renewal and expiration. (a) Term and renewal of license. The term of a tobacco retailer license is one year. A tobacco retailer’s license is invalid if the term of the license has expired. Each tobacco retailer shall apply for renewal of his or her license no later than thirty days prior to expiration of the term. (b) Expiration of license. A tobacco retailer’s license that is not timely renewed shall expire at the end of its term. To renew an expired license, the proprietor must: (1) Submit an application renewal form; and (2) Submit a signed affidavit affirming that the proprietor: (A) has not sold and will not sell any tobacco product or tobacco paraphernalia after the license expiration date and before the license is renewed; or (B) has waited the appropriate ineligibility period under section 8.75.200 of this chapter, for unlicensed tobacco retailing prior to seeking renewal of the license. Sec. 8.75.160 License nontransferable. (a) A tobacco retailer’s license may not be transferred from one person to another or from one location to another. A new tobacco retailer’s license is required whenever a tobacco retailing location has a change in proprietor(s). (b) Notwithstanding any other provision of this chapter, prior violations at a location shall continue to be counted against a location and license ineligibility periods shall continue to apply to a location unless: (1) the location has been transferred to new proprietor(s) in an arm’s length transaction; and (2) the new proprietor(s) provide the city with clear and convincing evidence that the new proprietor(s) have acquired or are acquiring the location in an arm’s length transaction. Sec. 8.75.170 License conveys a limited, conditional privilege. Nothing in this chapter shall be construed to grant any person obtaining and maintaining a tobacco retailer’s license any status or right other than the limited conditional privilege to act as a tobacco retailer at the location in the city identified on the face of the permit. For example, nothing in this chapter shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of the Fremont Municipal Code, zoning ordinance, building codes, business license tax ordinance, or any condition or limitation on smoking in an enclosed place of employment pursuant to California Labor Code Section 6404.5. The issuance of a tobacco retailer’s license under this chapter does not make the retailer a “retail or wholesale tobacco shop” for purposes of California Labor Code Section 6404.5. Sec. 8.75.180 Fee for license. Any license fee approved by the City Council by resolution, must be paid by a retailer and submitted with a license application. The fee must be calculated so as to recover the cost of administration and enforcement of this chapter, including, for example, issuing a license, administering the program, conducting public education, retailer inspections and compliance checks, enforcing violations and prosecuting violators. The fee must not exceed the cost of the regulatory program authorized by this chapter and all fees and interest must be used exclusively to fund the program. Fees are nonrefundable except as may be required by law. Sec. 8.75.190 Compliance monitoring. (a) Compliance with this chapter shall be monitored by the department. Any peace officer or code enforcement officer is authorized to enforce the provisions of this chapter. The city manager may designate any number of additional persons to monitor compliance. (b) Compliance checks and inspections will be conducted to assess compliance with the requirements of this chapter and whether retailers are conducting their businesses in a manner that complies with applicable tobacco retailing laws. Inspections will be conducted on a complaint basis, and to the extent possible at least once per year. Nothing in this paragraph creates a right of action in any licensee or other person against the city or its agents. Article IV. License suspension, revocation and appeals. Sec. 8.75.200 Tobacco retailing without a valid license. In addition to any other penalty authorized by law, any person found to engage in tobacco retailing at a location without a valid tobacco retailer’s license, either directly or through the person’s agents or employees, shall be ineligible to apply for, or to be issued, a tobacco retailer’s license for a minimum of thirty days after the violation is discovered (“ineligibility period”). Sec. 8.75.210 Violations, suspension and revocations. If reasonable cause exists to believe a violation of this chapter has occurred, or if a court of competent jurisdiction determines the same, the department shall issue a notice of violation and begin the revocation process as follows: (a) For a first violation within any sixty-month period, no new license may issue for the person or the location for thirty days from the date the violation is discovered. (b) For a second violation within any sixty-month period, no new license may issue for the person or the location for ninety days from the date the violation is discovered. (c) After a third violation within any sixty-month period, no new license may issue for the person or the location for twelve months from the date the violation is discovered. (d) Upon a finding by the department of four or more violations within any sixty-month period, the license shall be revoked. (e) Locations where there is proof that ownership of the business has been transferred in an arm’s length transaction, are exempt from the provisions of this section. Sec. 8.75.220 Seizure and destruction of illegal products. Any tobacco product or tobacco paraphernalia offered for sale in violation of this chapter is subject to seizure and may be forfeited after reasonable notice and a hearing opportunity is provided to the tobacco retailer to show the tobacco products and tobacco paraphernalia seized were not offered for sale. A retailer may appeal the department’s decision after the hearing, as set forth in Section 8.75.240. The forfeited illegal products will be destroyed after all internal appeals have been exhausted and the time for seeking judicial review under California Code of Civil Procedure Section 1094.6 has expired. No seized products will be destroyed while a lawsuit is pending until after a judgment becomes final. Sec. 8.75.230 Revocation of license wrongly issued. A tobacco retailer’s license shall be revoked if the department finds, after notice and an opportunity to be heard is afforded, that one or more of the bases for denial of a license under Section 8.75.130 existed at the time the application was made or at any time before the license was issued. The decision by the department is final. The revocation shall be without prejudice to the filing of a new license application. Sec. 8.75.240 Notice and Administrative appeals. (a) Notice of violation. A retailer may contact the department to challenge a finding of a violation within ten days of the notice of violation. Upon receipt of a timely written challenge, the department will send a notice setting the date and time of the hearing for the retailer to show cause why a violation does not exist. If the tobacco retailer fails to present sufficient evidence at the hearing to disprove the violation, the department will issue a final written notice upholding the violation. (b) Notice of revocation or suspension of license. If a license is subject to revocation or suspension, the department will provide written notice to the retailer of the basis for the proposed action, the penalties for violations, and the retailer’s right to request a hearing with the department within ten days of the issuance of the notice. Upon receipt of a timely written request for a hearing, the department will send a notice setting the date and time of the hearing for the retailer to show cause why a violation does not exist. The failure to present sufficient evidence at the hearing to disprove the violation will result in the department issuing a final written notice upholding the violation and providing for the revocation or suspension of the license. The department’s final written notice shall inform the retailer of the right to appeal the department’s decision pursuant to subsection (c) of this section. Within ten business days of the mailing of the notice of revocation or suspension, the tobacco retailer shall cease the operation of the business for which the license was issued. (c) Appeal procedures for license denials, suspensions and revocations. A decision of the department to deny, revoke or suspend a license is appealable to the City Manager or the City Manager’s designee (“designee”), and must be filed with the City Clerk within ten days of mailing of the department’s notice of denial, revocation or suspension. If such an appeal is made, it shall stay enforcement of the appealed action. An appeal to the City Manager or designee is not available denials of a permit under to Sections 8.75.130(e) and 8.75.230. The date, time, and place of appeal hearing will be provided in writing to the tobacco retailer with at least ten days’ notice. If the tobacco retailer fails to present evidence establishing the tobacco retailer is entitled to retain the license or should not be subject to suspension or revocation, the City Manager or designee will uphold the revocation or suspension and give written notice to the tobacco retailer. Within ten days of the mailing of the final notice upholding the revocation or suspension, the tobacco retailer shall cease operation of the business for which the license was issued. (d) Neither the provisions of the Administrative Procedure Act (Government Code Section 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial hearings apply to any hearings or appeals under this chapter. A record of the hearing must be made by any means, including electronic recording, so long as a reasonably accurate and complete written transcription of the proceedings can be made. (e) After the conclusion of the hearing, a notice of written decision upholding the City’s decision must be served on the retailer/appellant with findings of facts, conclusions of law, and notice of the time for seeking judicial review pursuant to Code of Civil Procedure Section 1094.6. Any decision rendered after the hearing shall be the city’s final administrative decision. (f) Judicial review. The decisions of the Hearing Examiner or other responsible person on appeal shall be final, subject to judicial review under the provisions of California Code of Civil Procedure Sections 1094.5 and 1094.6. California Code of Civil Procedure. Section 1094.6 governs limitation of time for filing petitions under Section 1094.5. (g) Settlement in lieu of appeal. For a first or second alleged violation of this chapter within any five-year period, the department may engage in settlement negotiations and may enter into a settlement agreement with a tobacco retailer alleged to have violated this chapter; provided that a timely appeal has been filed. Settlements shall not be confidential. (1) After a first alleged violation, any settlement must contain the following minimum terms: (A) Suspension of the tobacco retailer license for at least five days; (1.b.) A settlement payment to the city of at least one thousand five-hundred dollars; and (B) An admission by the licensee that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations. (C) Immediate steps will be taken by the tobacco retailer to remedy the violation. corrective action plan to be submitted to the city. (2) After a second alleged violation, any settlement must contain the following minimum terms: (A) Suspension of the tobacco retailer license for at least fifteen days; (B) A settlement payment to the Department of Health Services of at least five thousand five hundred dollars; and (C) An admission by the licensee that the violation occurred and a stipulation that the violation will be counted when considering what penalty will be assessed for any future violations. (D) Immediate steps will be taken by the tobacco retailer to remedy the violation. corrective action plan to be submitted to the city. Article V. Enforcement and Penalties. Sec. 8.75.250 Enforcement. (a) The department is charged with enforcing the provisions of this chapter. The City Manager shall have power to adopt rules of procedure and regulations for the purpose of carrying out the provisions of this chapter; and a copy of such rules of procedure and regulations shall be on file and made available for public examination. (b) Inspection and right of entry. The department, or a duly authorized representative, may enter on any site or into any structure for the purpose of investigation, provided they shall do so in a reasonable manner, whenever they have cause to suspect a violation of any provision of this chapter. The refusal of an owner, occupant or agent to permit such entry and inspection constitutes a violation of this chapter. (c) Youth participation. Whenever evidence of a violation of this chapter is obtained in any part through the participation of a person under the age of eighteen years old, such a person shall not be required to appear or give testimony in any civil or administrative process brought to enforce this chapter and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. Sec. 8.75.260 Penalties. (a) The penalty provisions of chapter 1.15 and chapter 1.20 of this code are incorporated herein by reference. (b) Infractions. Any person who violates, causes, or permits another person to violate any provision of this chapter is guilty of an infraction. (c) Criminal prosecution. A violation of this chapter is a misdemeanor, which may be charged and prosecuted as an infraction in the interests of justice, in the discretion of the enforcement official. Criminal enforcement of this Chapter shall be the responsibility of the chief of police or designee. In addition, any peace officer or code enforcement official also may enforce this provision in accordance with law. (d) Civil enforcement. (1) Fines. Violations of this chapter are subject to a civil action brought by the city, punishable by a civil fine of up to $1,000 for each violation. (2) Injunctions, nuisance abatement and code enforcement. Violations of this chapter may be remedied by a civil action brought by the city attorney including, for example, administrative or judicial nuisance abatement proceedings, civil or criminal code enforcement proceedings, and suits for injunctive relief. Where the city pursues a civil action to remedy a violation of this chapter, the prevailing party shall be entitled to recover attorneys’ fees and costs if the city elects, at the beginning of that action, to seek recovery of its own attorneys’ fees and costs pursuant to California Government Code Section 38773.5. (A) In assessing the amount of the civil penalty to be imposed, the court shall consider any one or more of the relevant circumstances presented by: the nature and seriousness of the misconduct giving rise to the violation, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the misconduct, and the defendant’s assets, liabilities, and net worth. (B) The city attorney may at any time institute civil proceedings for injunctive and monetary relief including civil penalties, against any person for violations of this chapter, without regard to whether the department has assessed or collected administrative penalties. The city may recover reasonable attorneys’ fees and costs for civil actions brought under this chapter. (e) Unfair Competition. Violations of this chapter constitute unfair competition pursuant to California Business and Professions Code Section 17204. The City Attorney may cause an action to be filed for injunction and civil penalties of up to $2,500 for each violation. Any person who intentionally violates an injunction is liable for additional civil penalties up to $6,000 for each day of each violation. (f) Public nuisance. Violations of this chapter are hereby declared to be a public nuisance. The City Attorney may bring a civil action to abate the nuisance and to recover the expense of investigation, abatement and prosecution. The city may recover abatement and related administrative costs by imposing a Page 19 of 21 nuisance abatement lien on the property or by special assessment in accordance with the law. The prevailing party shall be entitled to recover attorney fees in any action, administrative proceeding, or special proceeding instituted to abate a nuisance. (g) General provisions. (1) Cumulative remedies provided by this chapter are cumulative and in addition to any other remedies available at law or in equity. (2) Causing, permitting, aiding, abetting, or concealing a violation of any provision of this chapter shall also constitute a violation of this chapter. A violation exists for each day on which an electronic cigarette, electronic cigarette product, electronic cigarette paraphernalia, vaping device, tobacco product or tobacco paraphernalia is offered for sale in violation of this chapter. A violation also exists for each individual retail electronic cigarette, electronic cigarette product or tobacco product and each individual retail item of electronic cigarette paraphernalia tobacco paraphernalia that is distributed, sold, or offered for sale in violation of this chapter. (3) Each day on which a violation exists shall constitute a separate violation of this chapter. (4) A violation exists for each day on which a tobacco retailer (A) operates without a license, (B) distributes, sells or offers for sale an illegal tobacco product or tobacco paraphernalia, or (C) commits any other violation of this chapter. ARTICLE VI. Miscellaneous Provisions. Sec. 8.75.270 Outreach and education. The department, in conjunction with the Alameda County Health Department and community organizations, will engage in outreach and education program designed to inform tobacco retailers and the general public about the requirements of this chapter. Any written materials and information developed will be made available to tobacco retailers, schools and the general public. Nothing in this section shall create a right of action in any licensee or other person against the city or its employees and agents. Sec. 8.75.280 Adoption of regulations. The City Manager is authorized to adopt such administrative regulations as may be appropriate to implement and enforce this chapter. Sec. 8.75.290 Effect. This chapter governs the licensure, operation and regulation of all tobacco retailing activities wherever such activities occur, and the terms and provisions of this chapter shall supersede any other provision of a city code or regulation that may conflict with this chapter. SECTION 5. CEQA The City Council finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this ordinance is exempt from the requirements of the California Environmental Quality Act (CEQA) in that it is not a Project which has the potential for causing a significant effect on the environment. The City Council therefore directs that a Notice of Exemption be filed with the Alameda County Clerk in accordance with the CEQA guidelines. SECTION 6. SEVERABILITY If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held by a court of competent jurisdiction to be invalid, such a decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Fremont hereby declares that it would have passed this Ordinance and each section or subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid. SECTION 7. EFFECTIVE DATE This Ordinance shall take effect and will be enforced thirty (30) days after its adoption.